United States v. Gilarime Mueller ( 2010 )

  •                      United States Court of Appeals
                                FOR THE EIGHTH CIRCUIT
                                         No. 09-1798
    United States of America,                 *
                 Appellee,                    *
                                              * Appeal from the United States
          v.                                  * District Court for the
                                              * Southern District of Iowa.
    Gilarime Michael Mueller,                 *
                                              * [UNPUBLISHED]
                 Appellant.                   *
                                  Submitted: March 23, 2010
                                     Filed: March 29, 2010
    Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
           Gilarime Mueller appeals the district court’s1 judgment entered after a jury
    found him guilty of conspiring to distribute cocaine base, in violation of 21 U.S.C.
    §§ 841(a)(1), (b)(1)(A), and 846; and possessing cocaine base with intent to distribute,
    in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2. Mueller’s
    counsel has moved to withdraw and filed a brief under Anders v. California, 
    386 U.S. 738
     (1967), arguing that the convictions were not supported by the evidence; that the
    district court erred in not reducing the offense level under Spears v. United States, 129
            The Honorable John A. Jarvey, United States District Judge for the Southern
    District of Iowa.
    S. Ct. 840 (2009) (per curiam), based on the disparity between powder cocaine and
    cocaine base; that the court erred in enhancing the sentence for obstruction of justice;
    and that the court erred in denying the motion to suppress evidence obtained during
    the search of Mueller’s residence. Mueller seeks appointment of new counsel and has
    filed a pro se brief, in which he argues that the district court violated Apprendi v. New
    530 U.S. 466
     (2000), when it attributed 4.5 kilograms of cocaine base to him;
    that there was no proof supporting the drug quantity found by the court; and that his
    sentence violated the Eighth Amendment.
           We hold that the evidence was sufficient to support Mueller’s conviction on
    both counts. See United States v. Birdine, 
    515 F.3d 842
    , 844 (8th Cir. 2008) (this
    court reviews sufficiency of evidence in light most favorable to government, resolving
    evidentiary conflicts in government’s favor and accepting all reasonable inferences
    that support jury’s verdict). Four cooperating witnesses testified that they bought
    cocaine base from Mueller, or participated with Mueller in an arrangement to buy
    cocaine base or to buy powder cocaine and convert it to cocaine base. See United
    States v. Cruz, 
    285 F.3d 692
    , 700 (8th Cir. 2002) (to prove conspiracy, government
    must prove existence of agreement to achieve illegal purpose, and defendant’s
    knowledge of agreement and knowing participation in conspiracy). Other testimony
    showed that Mueller had been present during the cooking, at his residence, of 39.54
    grams of cocaine base later seized by police. See United States v. Parker, 
    587 F.3d 871
    , 881 (8th Cir. 2009) (to sustain conviction for possession with intent to distribute,
    government must prove defendant knowingly possessed and intended to distribute
    drugs); United States v. Mendoza, 
    421 F.3d 663
    , 668-69 (8th Cir. 2005) (elements of
    aiding and abetting possession with intent to distribute are that defendant associated
    himself with possession of drugs with intent to distribute, he participated in this
    activity as something that he wished to bring about, and he sought by his action to
    make this activity succeed). All of the cooperating witnesses testified about their plea
    agreements and their hopes for reduced sentences in return for their cooperation. See
    United States v. Foxx, 
    544 F.3d 943
    , 950 (8th Cir. 2008) (credibility determinations
    are well within province of jury), cert. denied, 
    130 S. Ct. 91
     (2009); United States v.
    431 F.3d 1085
    , 1094 (8th Cir. 2005) (impeachment evidence was for jury to
           We also hold that counsel’s Spears argument fails, as the district court
    addressed the powder/crack cocaine disparity and found that it did not warrant any
    correction in this case, see United States v. Johnson, 
    574 F.3d 570
    , 573 (8th Cir. 2009)
    (district court did not err where it acknowledged its power to vary from the Guidelines
    to address powder/crack cocaine disparity and chose not to); and that the district court
    did not err in imposing an enhancement for obstruction of justice, based on its
    findings that Mueller had attacked an inmate who could have testified against him at
    sentencing, see U.S.S.G. § 3C1.1 comment. (n.1) (adjustment applies if obstructive
    conduct occurred with respect to investigation, prosecution, or sentencing of instant
    offense); United States v. Thompson, 
    210 F.3d 855
    , 860-61 (8th Cir. 2000)
    (obstruction enhancement based on fact-finding is reviewed for clear error; attempt
    to intimidate or threaten witness is sufficient for enhancement).
          We further hold that the district court did not err in denying Mueller’s motion
    to suppress, as the evidence supported the court’s findings that there was probable
    cause for the warrant to search Mueller’s residence and that the seizure of the
    residence while waiting for the warrant was reasonable. See Illinois v. McArthur, 
    531 U.S. 326
    , 330-33 (2001) (factors for determining whether seizure pending warrant was
    reasonable); Illinois v. Gates, 
    462 U.S. 213
    , 238 (1983) (probable-cause
    determination); United States v. Clarke, 
    564 F.3d 949
    , 958 (8th Cir.) (standard of
    review for denial of suppression motion), cert. denied, 
    130 S. Ct. 651
           As to the pro se arguments, we conclude that the district court’s drug-quantity
    finding (1) did not violate Apprendi, as Mueller was sentenced within the applicable
    statutory maximum, see 530 U.S. at 490; (2) was properly based on the
    preponderance-of-the-evidence standard, as the court applied advisory Guidelines, see
    United States v. Hines, 
    472 F.3d 1038
    , 1040 (8th Cir. 2007) (per curiam); and (3) was
    amply supported by the testimony of co-conspirator Andrew Sullivan. We further
    conclude that Mueller’s 380-month sentence neither violated the Eighth Amendment,
    given the large quantity of cocaine base involved and Mueller’s criminal history, see
    United States v. James, 
    564 F.3d 960
    , 964 (8th Cir.), cert. denied, 
    130 S. Ct. 433
    (2009), nor constituted an abuse of discretion, see United States v. Feemster, 
    572 F.3d 455
    , 461 (8th Cir. 2009) (en banc) (listing factors that constitute abuse of discretion).
           After reviewing the record independently under Penson v. Ohio, 
    488 U.S. 75
    (1988), we have found no nonfrivolous issues for appeal. Accordingly, the judgment
    is affirmed, counsel is granted leave to withdraw, and Mueller’s motion for new
    counsel is denied.